The Plaintiff commenced an Action in 2009 against his counsel for breach of contract and breach of duty of care relating to a patent infringement. The Plaintiff served an Affidavit of Records and a Supplemental Affidavit of Records in 2010, a response to a Notice to Admit on July 12, 2013, and a second Supplemental Affidavit of Records on November 13, 2015. The Defendants filed an Application to dismiss for delay pursuant to Rule 4.33 on November 24, 2016.

Master Schulz reviewed Rule 4.33 and the Court’s functional approach to Applications pursuant to Rule 4.33. Master Schulz stated that the Court must determine if there has been a “significant advance in the action that actually moves the lawsuit forward in a meaningful way considering its nature, value, importance and quality”. The Court should consider “the substance of the step taken and its effect on the litigation, rather than on its form”.

Master Schulz noted that, with respect to production of documents in the context of Rule 4.33, disclosing newly-found records as required by Rule 5.10 is obligatory but not a discrete procedural step. The analysis under Rule 4.33 requires consideration of whether the additional records narrow the issues or move the matter closer to resolution. Upon a review of the records which were produced in the November 13, 2015 Affidavit, Master Schulz determined they did not advance the Action.

The Plaintiff argued that there had been settlement discussions which had advanced the Action. Master Schulz stated that unsuccessful settlement discussions which do not narrow the issues, or which do not obtain agreement on some factual issues such as quantum or liability, do not significantly advance the Action for the purposes of Rule 4.33. Master Schulz noted that counsel engaging in settlement discussions must keep a watchful eye on the requirement of the Rules of Court.

In the result, the Application was granted and the Action was dismissed pursuant to Rule 4.33.